Employers are aware of the importance of preventing all forms of bullying and harassment in the workplace and ensuring that employees work in a safe environment. This is often implemented by training and having anti-bullying and equal opportunities policies. 

If an employee commits an act of harassment against another employee on the grounds of a protected characteristic, the employer is vicariously liable for the acts of the perpetrator.

However, an employer can seek to rely on the “reasonable steps” defence in Section 109(4) of the Equality Act 2010. This provides a defence for the employer if it can show that it took all reasonable steps to prevent employees from either committing a particular discriminatory act or committing such acts in general.  The problem with this defence is that the training and policies that employers seek to rely on, are often out of date and not well known.

This was the situation in the recent case Allay (UK) Limited v Gehlen. Mr Gehlen was subjected to harassment on the grounds of his race by another employee.  The Company sought to rely on the reasonable steps defence because the perpetrator had received training that had covered harassment relating to race.  However, both the Employment Tribunal and the Employment Appeal Tribunal found that the training was “clearly stale”.  It had taken place two years previous and had been found to be ineffective.

The EAT stated that it is not sufficient to merely ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective.  On this basis, the reasonable steps defence failed, and the Company was found to be vicariously liable for the discrimination of the perpetrator.

This highlights the need for all employers to ensure that policies and procedures are up-to-date and that there is regular effective training on them. Paying lip service to these policies may not only result in an unpleasant workplace for some employees, but it can be costly in an Employment Tribunal.

Schofield Sweeney will shortly be launching our ‘HR Health Check’ to help employers identify potential deficiencies in their employment contracts and policies. We also not only run regular webinars but we also have an in-house training programme covering issues such as discrimination.

If you would like to find out more about the HR Health Check, training or like some reassurance around your own policies, we’re here to help – get in touch